Subbo v. Pacific Coast Const. Co.

Appeal and Error—Filing Abstract—Extension of Time—Necessity of Notice. 1. Under Section 554, Subdivision 2, L. O. L., providing that if the abstract or transcript be not filed in the time provided, the appeal should be deemed abandoned, but that the trial court, or Supreme Court, may, upon such terms as may be just, by order enlarge the time for filing the same, a notice of an application for an order extending the time for filing an abstract of the record need not be served upon the adverse party, Laws of 1899, page 229, having omitted the provision for notice to respondent. Master and Servant—Assumed Risk—Negligence of Fellow-servant. 2. An employee assumes the risk of injury from the negligence of a fellow-servant. [As to the doctrine of assumption of risk in the law of master and servant, see notes in 97 Am. St. Rep. 884; 98 Am. St. Rep. 289.] Master and Servant—Fellow-servant—Test of Relations. 3. Whether an employee, whose act injured another employee, is a fellow-servant depends on the character of such act rather than upon the rank of the negligent employee. [As to who are fellow-servants and who is a vice-principal, see notes in 67 Am. Dee. 588; 75 Am. St. Rep. 584.] Master and Servant—Fellow-servant. 4. The act of the superintendent of railroad construction work and of the powderman in charging a blasting hole with powder by using an iron rod was a detail of the work, so that in doing such work they were fellow-servants of the workman injured by a premature explosion caused thereby, so that the employer was not liable for such injuries.

Decided May 28, 1912. On Motion to Dismiss Appeal. (123 Pac. 1070.) From Multnomah: Calvin U. (xantenbein, Judge. Me. Justice Bean delivered the opinion of the court. The defendant filed a motion to dismiss this appeal upon the ground that the appellant did not file his transcript or abstract of record within 30 days from the time of perfecting the appeal. This is not, under all circumstances, a cause of dismissal of an appeal. Section 554, L. O. L., provides that upon an appeal being perfected, the appellant shall, within 30 days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the rules of the appellate court may require, of so much of the record as may be necessary to intelligibly present the questions to be decided, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal. Subdivision 2 of the same section makes the further provisions: “If the transcript or abstract is not filed with the clerk of the appellate court within the time provided, the appeal shall be deemed abandoned, and the effect thereof terminated, but the trial court or the judge thereof, or the Supreme Court or a justice thereof, may, upon such terms as may be just, by order enlarge the time for filing the same; but such order shall be made within the time allowed to file the transcript, and shall not extend it beyond the term of the appellate court next following the appeal.” 1. It is admitted that the appeal in this case became perfected March 10, 1912. Within 30 days thereafter, to wit, on April 5, 1912, as shown by the record, the Circuit Court made an order enlarging the time for filing the transcript herein, and extending the same to and including April 30, 1912 (Starlc v. Marshall, 61 Or. 254, 120 Pac. 372), thus being within the time allowed by the statute. The defendant’s counsel seek to avoid the force of the order extending the time, for the reason that no notice of the application for the order was served upon the adverse party, and in support of their contention they cite Whalley v. Gould, 27 Or. 74 (40 Pac. 4). Since the rendition of that opinion, by the legislative enactment of 1899 (Laws 1899, p. 229), the words “upon notice to the respondent” were eliminated from subdivision 3 of Hill’s Code (subdivision 2 of Section 554, L. O. L.), and the statute amended in that respect. The motion to dismiss will therefore be denied. Argued June 6, decided June 24, 1913. On the Merits. (133 Pac. 83.) Statement by Mr. Justice Eakin. This is an action by John Subbo against the Pacific Coast Construction Company, a corporation, to recover damages for personal injuries. The defendant was engaged in excavating a cut for a railroad track through a rock bank. Calvin, as superintendent for the company, was in charge of the work. Stiles was a powderman who directed the work as to the drilling and as to the use of the blasting powder. Plaintiff and two or three other men were aiding in the work of drilling the holes for blasting and charging them with powder. Shortly before the injury complained of, plaintiff was directed to clean off the surface of the cut 20 or 25 feet away from and a little below tbe hole being charged with powder and out of sight of it. When Stiles and another were attempting to charge it, it prematurely exploded, greatly injuring plaintiff. It was usual for the men to tamp the powder into the holes with wooden rods provided for that purpose, but in case the powder lodged in the hole, in attempting to force it down, they resorted to the use of an iron bar or drill. It is alleged by plaintiff that the defendant did not furnish wooden rods for tamping the powder, but furnished iron rods for that purpose; and the question involved on this appeal arises upon the following instruction given by the court: “If you find that the company furnished woodén tamping rods and appliances for the men to use in loading these powder holes, and the men used an iron rod instead, then you must find a verdict for the defendant, and this would be the case even though you find the superintendent, Mr. Calvin, and the powderman, Mr. Stiles, used these iron rods, and the act of the superintendent, Mr. Calvin, and the powderman, Mr. Stiles, in using the iron tamping rods, if they did, instead of the wooden tamping rods, would be the act of a fellow-servant for which the company would not be responsible, so that the only question for you to consider is whether the company furnished wooden tamping rods for use in loading these holes, and if you find that they did then your verdict must be for the defendant.” The appeal depends upon the question whether Calvin, the superintendent, and Stiles, the powderman, in charging the hole with powder and using the iron bar for that purpose were fellow-servants with the plaintiff. There were plenty of wooden rods available for tamping purposes, but when the powder lodged in the hole the men sometimes used an iron bar to force it down; and one of plaintiff’s witnesses says that when Calvin came there the powder was stuck, that there was an iron bar then in the hole, and that Calvin said to Stiles to drive it down. Calvin denies this, but the weight of the evidence was for the jury, and the trial court instructed upon plaintiff’s theory that Calvin did say to use the iron bar, but that that made no difference, for as to the work in hand Calvin was a fellow-servant. There were other exceptions, but they related to the same point. The verdict was for defendant, and from a judgment thereon plaintiff appeals.